--. SUPREME COURT 1.. OF BRITISH COLUMBIA VANCGEJVER REGISTRY NO. ?g .. COURT OF BRITISH COLUMBIA DALE HERIOT PLAINTIFF AND: CORPORATION OF THE CITY OF GRAND FORKS DEFENDANT NOTICE OF CIVIL CLAIM This action has been started by the plaintiff for the relief set out in Part 2 below. If you intend to respond to this action, you or your lawyer must ?le a response to civil claim in Form 2 in the above?named registry of this court within the time for response to civil claim described below, and serve a copy of the ?led reSponse to civil claim on the plaintiff. If you intend to make a counterclaim, you or your lawyer must ?le a reSponse to civil claim in Form 2 and a counterclaim in Form 3 in the above?named registry of this court within the time for response to civil claim described below, and serve a COpy of the ?led response to civil claim and counterclaim on the plaintiff and on any new parties named in the counterclaim. JUDGMENT MAY BE PRONOUNCED AGAINST YOU IF YOU FAIL to ?le the reSponse to civil claim within the time for response to civil claim described below. TIME FOR RESPONSE TO CIVIL CLAIM A response to civil claim must be ?led and served on the plaintiff, IEEJAETEU 28131151} R338 TEEICMBEI Elli-2:3 (C) -2- if you reside anywhere in Canada, within 21 days after the date on which a copy of the ?led notice of civil claim was served on you, if you reside in the United States of America, within 35 days after the date on which a copy of the ?led notice of civil claim was served on you, if you reside elsewhere, within 49 days after the date on which a copy of the ?led- notice of civil claim was served on you, or if the time for response to civil claim has been set by order of the court, within that time. CLAIM OF THE PLAINTIFF Part 1: STATEMENT OF FACTS The Plaintiff, Dale Heriot, is 58 years old with an address for service c/o HHBG Lawyers, 1918 - 1030 West Georgia Street, Vancouver, British Columbia, V6E 2Y3. The Defendant, the Corporation of the City of Grand Forks, is a municipality incorporated pursuant to the Local Government Act, RSBC 2015, 0.1, with an address for service c/o Young Anderson, Barristers and Solicitors, 1616 808 Nelson Street, Vancouver, British Columbia, V6Z 2H2. This Notice of Civil Claim relates to the wrongful dismissal of the Plaintiff 3 employment by the Defendant. Terms of Employment 4. The Plaintiff was employed by the Defendant for 21 years, from approximately 1998 to July 23, 2019. He worked his way up through positions of increasing responsibility. At the time of termination, the Plaintiff was employed as the Fire Chief Manager of Emergency Services for the Defendant. At all material times, the Plaintiff faithfully and diligently performed his duties on behalf of the Defendant. On or about January 1, 2012, the Plaintiff entered a ?ve (5) year ?xed term employment agreement (the ?Initial Agreement?) with the Defendant, which was due to expire on December 31, 2016. Paragraph 8(2) of the Initial Agreement states that the agreement will be automatically renewed on the same terms and conditions for a period of 12 months if: a. the Plaintiffs employment is continued after December 31, 2016;'and 10the Defendant has not provided the Plaintiff with notice of non-renewal of his employment. On or about April 13, 2016, the Plaintiff and the Defendant agreed to amend the Initial Agreement to change the Plaintiff?s employment to a four-day work week (the ?2016 Amendment?). The ?xed term of the Initial Agreement remained unchanged and remained due to expire on December 31, 2016. The Plaintiff and the Defendant did not enter into any new written employment agreement at any time after April 13, 2016. Since the Plaintiff and the Defendant did not enter into a new written employment agreement before the expiry of the term of the Initial Agreement, the Plaintiff?s employment was automatically continued under the same terms and conditions until December 31, 2017. Following the expiration of the Initial Agreement on December 31, 2017, the Plaintiff continued to work for the Defendant although the parties did not enter into a new written employment agreement. After December 31, 2017 until the time of his dismissal, the Plaintiff?s employment with the Defendant continued pursuant to an employment agreement of an inde?nite duration (the ?Inde?nite Term Agreement?). The terms of the Inde?nite Term Agreement between the Plaintiff and the Defendant were oral. It was an implied term of the Inde?nite Term Agreement that the Defendant would provide the Plaintiff with common law reasonable notice, or pay in lieu of notice, in the event of termination without cause. At the time of termination, the Plaintiff?s remuneration package from the Defendant included the following: a. An annual salary of approximately $108,583.10 per year (with an annual 3% salary increase); b. Additional hourly compensation whenever the Plaintiff performed the role of Emergency Coordinator; c. Annual paid vacation; d. Additional vacation in lieu of overtime pay; e. Payment of bene?ts including extended health care, dental, short-term and long- term disability, life insurance and coverage; f. Medical Services Plan coverage; -4- g. Participation in the Defendant?s superannuation pension plan; and h. Such other compensation as the Plaintiff may advise at trial. (Collectively, the ?Plaintiff?s Compensation?). The Investigation 15about March 18, 2019, the Plaintiff was advised by the Defendant that a volunteer ?re?ghter had ?led a complaint about bullying and harassment and safety issues within the Grand Forks Fire Department (the ?Department?), particularly involving the Plaintiff. The Plaintiff was advised by the Defendant that a third?party investigator had been retained to investigate the complaint. Although the Defendant had advised the Plaintiff that the complainant had ?led a bullying and harassment complaint, the investigator advised the Plaintiff that the complaint was not ?labelled? as bullying and harassment. The Plaintiff was never provided with the actual complaint and was not provided with suf?cient details of the allegations contained in the complaint which would allow him to fully respond. The Plaintiff was never advised during the investigation that the investigation would include a wide?ranging inquiry of his ?tness to perform his role as Fire Chief. He was also never advised that the outcome of the investigation may result in discipline or termination of his employment. The Plaintiff and the investigator agreed to meet for an interview on or about March 21, 2019. On or about March 20, 2019, the investigator advised the Plaintiff that they would be discussing three past events during their interview the following day. No other details of the complaint or the scope of the investigation were provided to the Plaintiff. On or about March 21, 2019, the Plaintiff was interviewed by the investigator for less than one hour. No ?lrther interviews of the Plaintiff were conducted by the investigator or by anyone else on behalf of the Defendant. Changes to Department Access 21. On or about March 22, 2019, the investigator advised the Plaintiff that the complainant noticed that the Department?s lock and alarm codes had been changed, and that he could not log into the Department?s mobile responder application. The Plaintiff advised the investigator that there had been a hacking attempt, so the common lock and alarm codes used by the entire Department were changed for 22. 23. 24. -5- security reasons. When this was done, the Deputy Chief had advised the Department of this and directed members to contact him if there were any access issues. The Plaintiff also re-registered the complainant on the Department?s mobile responder application, a task which was normally done by another employee who was no longer with the Department. The Plaintiff believed that he had successfully registered the complainant for the Department?s mobile responder application until he was advised by the investigator on or about March 30, 2019 that the complainant still could not log into the application. When the Plaintiff was noti?ed of this, he investigated the issue and was eventually able to restore the complainant?s access. At no time did the Plaintiff remove any of the complainant?s access as a means of retaliation, or for any other improper purpose. Additional Investigation Events 25about March 25, 2019, the investigator requested that the Plaintiff send an email to the Department on her behalf about the investigation. In the email, the investigator advised Department employees that she had been hired to conduct a ?workplace assessmen of the Department. The investigator advised that she would be contacting a random number of employees for an interview, and that employees could request to be interviewed as well. The email provided Department employees with a list of questions that interviewees could eXpect to be asked, which dealt with the work environment generally and did not explicitly mention the Plaintiff. It is the Plaintiff?s understanding that the investigator interviewed at least 16 Department employees beginning on or about March 25, 2019. Even though these interviews took place after the Plaintiff was interviewed by the investigator, the investigator did not contact the Plaintiff to put any information and/or allegations to him after interviewing these employees. As a result, the Plaintiff was never provided with an opportunity to respond to any information and/or allegations gathered by the investigator by these employees before the investigation was concluded. On or about April 8, 2019, the Plaintiff emailed the Defendant to request ?irther information with respect to the details of the complaint, the investigation and the investigation process. He reminded the Defendant that he had never been advised of the allegations made against himself and the Department, and he requested that a list of the allegations be provided to him. The Plaintiff did not receive a response to this email from the Defendant. 30. 31. On or about April 26, 2019, the Defendant provided the Plaintiff with a redacted investigation report, which contained troubling and inaccurate conclusions about the Plaintiff?s conduct. On or about May 7, 2019, the Plaintiff was placed on paid administrative leave on an inde?nite basis. Media Coverage 32. 33. 34. 35. 36. Shortly after the Plaintiff was placed on leave, multiple news articles were published about the complaint and investigation. The investigation was described in the media as dealing with safety and bullying and harassment issues. These articles contained various inaccuracies about the Plaintiff and the circumstances surrounding the investigation. These articles mention the Plaintiff by name, and state that he was recently placed on administrative leave. The Plaintiff was contacted by the media for comment on these articles, which he declined to provide. The Defendant failed to ensure the media?s reporting was accurate, and failed to correct misinformation in the media, including but not limited to, misinformation about the Plaintiff and the investigation. The Defendant?s failure to correct this misinformation runs contrary to the Defendant?s own written communications policies and procedures. The Plaintiff experienced mental distress as a result of this media coverage and the Defendant?s failure to correct published misinformation. Post?Investigation Events 37. 38. 39. On or about May 15, 2019, the Plaintiff sent an email to the Defendant requesting further information with respect to the details of the complaint, the investigation and the investigation process. On or about May 22, 2019, the Defendant replied to the Plaintiff that the investigation was complete. The Defendant also advised the Plaintiff that they anticipated making changes to the leadership structure of the Department as a result of the investigator?s ?ndings that the Plaintiff engaged in bullying and harassing behaviour. On the same day, the Defendant advised the Plaintiff that it was willing to return the Plaintiff to active service only if the Plaintiff agreed to changes to the terms and conditions of his employment. These changes included the removal of the majority of the Plaintiff?s job duties from his job description. 40. 41. 42. -7- Although the Defendant advised that the Plaintiff could remain in his position as Fire Chief, he would no longer have overall day-to-day command of the Fire Department and would be restricted to performing administrative duties only. The Defendant also advised that it intended to create a second Fire Chief position with a focus on operations. The anticipated changes to the Fire Chiefs duties were very distressing to the Plaintiff. Fire departments are paramilitary organizations based on rank structure. A person?s rank is more meaningful than it might otherwise be for a civilian employment position. The Defendant?s anticipated changes to the Plaintiff?s duties meant that they intended to effectively demote him from his rank. The Plaintiff did not accept the Defendant?s anticipated changes to his job duties. Termination of the Plaintiff?s Employment 43about July 16, 2019, the Defendant advised the Plaintiff that it intended to recommend to the Defendant?s Council that the Plaintiff?s employment be terminated without cause at a special meeting held on or about July 23, 2019. On or about July 25, 2019, the Defendant advised the Plaintiff that his employment was terminated without cause, effective July 23, 2019. The Defendant advised the Plaintiff that he was only entitled to 12 months of salary continuance as per the Initial Agreement and began to pay the Plaintiff accordingly. The Defendant?s termination of the Plaintiff?s employment contract was wrongful in that the Defendant failed to provide the Plaintiff with reasonable notice of termination. The termination of the Plaintiff?s employment with the Defendant constituted an arbitrary, willful, and fundamental breach of the Inde?nite Term Agreement and the wrongful dismissal of the Plaintiff. As a result of the failure by the Defendant to provide reasonable notice of termination of employment, the Plaintiff has suffered and continues to suffer loss and damage including, without limitation, the following: a. All of the Plaintiffs Compensation that the Plaintiff would have earned during the reasonable notice period that the Defendant has failed to provide; b. Mitigation expenses, as well as out of pocket expenses in relation to lost bene?ts of employment; c. Damages for the loss of reputation; d. Damages for mental distress; e. Such other loss and damage as may be advised at trial. Duty of Good Faith and Duty of Honest Performance 49. 50. The Defendant also owed to the Plaintiff an implied duty of good faith and fair dealing at all times, including without limitation at or around the time of termination of the Plaintiff?s employment (the ?Duty of Good Faith?), which included a duty to refrain from the following conduct: a. b. Being unfair, untruthful, misleading or unduly insensitive; Failing to provide the Plaintiff with suf?cient details of the sc0pe of the investigation so that he may properly respond; Providing the Plaintiff with inaccurate details of the scope of the investigation; Failing to inform the Plaintiff that the investigation may result in discipline or termination of his employment; Failing to conduct a fair and complete investigation; Failing to provide the Plaintiff with a fair opportunity to respond to the allegations of misconduct; Misrepresenting the scope of the investigation and the decision to terminate the Plaintiffs employment; Failing to consider all of the facts and circumstances relating to the alleged misconduct, including when assessing and determining: i. Whether any actions of the Plaintiff constituted a ?material breach of the terms and conditions of employment?; and ii. Whether the nature and degree of the breach warranted dismissal or whether a lesser penalty, including a disciplinary suspension, with or without pay, would be sufficient; and Dismissing the Plaintiff at a time or in a manner or combination thereof designed to deprive him of a bene?t or right that he would otherwise enjoy absent such timing or manner of dismissal. It was a further implied term of the Plaintiff?s employment that the Defendant would perform the terms of the Inde?nite Term Agreement honestly, fairly and reasonably, and that the Defendant would have appropriate regard to the legitimate interests of the 51. 52. 53. -9- Plaintiff at all times, including without limitation when considering whether to terminate or otherwise make fundamental changes to the Plaintiffs employment (the ?Duty of Honest Performance?). It was in the contemplation of the parties that, in the event that the Defendant breached the Duty of Good Faith or the Duty of Honest Performance, the Plaintiff would suffer loss and damage greater than the loss and damage attributable to any notice period. The conduct of the Defendant amounted to a breach of the Duty of Good Faith and/or the Duty of Honest Performance owed by the Defendant to the Plaintiff. As a result of the Defendant?s breach of the Duty of Good Faith and/or the Duty of Honest Performance, the Plaintiff has suffered further damages and loss, including without limitation, mental distress. Part 2: RELIEF SOUGHT 1. 2. 6. Damages for breach of contract; General damages; Punitive and aggravated damages; Costs; Interest pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79; and Such other relief as this Honourable Court may deem just. Part 3: LEGAL BASIS 1. The termination of the Plaintiff?s employment without cause and without reasonable notice constitutes a breach of the Inde?nite Term Agreement between the Plaintiff and the Defendant. The conduct of the Defendant was a material and fundamental breach of the Duty of Good Faith and the Duty of Honest Performance owed to the Plaintiff and has caused the Plaintiff to suffer damages and loss. The facts establish a claim against the Defendant for compensatory damages and additional moral damages. The conduct of the Defendant is deserving of censure by the court and is worthy of an award for punitive and aggravated damages. The Plaintiff pleads and relies on the inherent jurisdiction of the court, the Supreme Court Civil Rules, B.C. Reg 168?2009, the Court Order Interest Act, R.S.B.C. 1996, -10.. c. 79, the Employment Standards Act, R.S.B.C. 1996, C. 113 and the Local Government/let, RSBC 2015, 0.1 Plaintiff?s address for service: HHBG Lawyers 1918 1030 West Georgia Street Vancouver, BC V613 2Y3 Attention: Steven M. Boome Fax number address for service (if any): E?mail address for service (if any): ecrawford@hhbg.ca Place of trial: Vancouver, British Columbia The address of the registry is: 800 Street Vancouver, BC. V62 2E1 Date: 22/] 311/2020 Signature of lawyer for Plaintiff Steven M. Boome _11_ Rule 7-1(1) of the Supreme Court Civil Rules states: (1) Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period, prepare a list of documents in Form 22 that lists all documents that are or have been in the party?s possession or control and that could, if available, be used by any party at trial to prove or disprove a material fact, and (ii) all other documents to which the party intends to refer at trial, and serve the list on all parties of record. APPENDIX Part 1: CONCISE SUMMARY OF NATURE OF CLAIM: This is a claim for breach of an employment agreement. Part 2: THIS CLAIM ARISES FROM THE FOLLOWING: an employment relationship Part 3: THIS CLAIM INVOLVES: none of the above Part 4: Supreme Court Civil Rules, B.C. Reg. 168?2009 Court Order Interest Act, R.S.B.C. 1996, c. 79 Employment Standards Act, R.S.B.C. 1996, c. 13 Local Government Act, R.S.B.C. 2015, c.1